No. 80-2-323, Appeal from Order and Judgment of the Superior Court of Pennsylvania dated May 13, 1980, affirming the Order of the Court of Common Pleas of Dauphin County, Pennsylvania, dated April 24, 1979, at No. 5792 S 1978
Richard C. Angino, Harrisburg, for appellant.
Richard H. Wix, Harrisburg, for appellee.
Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Nix, J., filed an opinion in support of affirmance. Wilkinson, J., filed an opinion in support of affirmance in which Roberts, J., joins. Flaherty, J., filed an opinion in support of reversal in which Larsen and Kauffman, JJ., join. O'Brien, C.j., did not participate in the consideration or decision of this case.
The Court, being equally divided, the order of the Superior Court is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
This is an appeal from an order of the Superior Court, 286 Pa. Super. 626, 427 A.2d 247, affirming the order of the trial court sustaining appellee's preliminary objection in the nature of a demurrer and dismissing appellant's complaint for failure to state a cause of action in trespass.
The specific question presented for our review is whether a cause of action for negligent infliction of emotional distress exists on behalf of a father whose son was fatally injured after being struck by an automobile where the father was neither a witness to the accident nor in the immediate vicinity thereof, but arrived at the accident scene after the injured son had already been taken to the hospital.
The instant complaint transcends established foreseeable limits of liability in third party emotional distress cases and advocates establishment of an open-ended standard which will result in the imposition of greatly expanded liability. We find that the demurrer was properly sustained and therefore affirm the order of the Superior Court.
Since this appeal is from the sustaining of a preliminary objection in the nature of a demurrer, we accept as true all well pleaded material facts set forth in the complaint and every reasonable inference deducible therefrom. Papieves v. Kelly, 437 Pa. 373, 263 A.2d 118 (1970).
The pertinent facts are as follows. On Sunday, June 26, 1977, George N. Yandrich, nineteen year old son of George Yandrich, was severely injured when his bicycle was struck by an automobile operated by appellee. The father did not witness his son's accident, nor was the father in the immediate vicinity of the accident scene. After being informed of the accident, the father hurried to the scene only to learn that his son had already been taken to the hospital. The father then proceeded to the hospital and remained there until the boy died five days later. After the death of his son, the father began to drink heavily, became despondent, lost all regard for personal hygiene, cried continuously and remarked that he had no desire to continue living. Some three months later, October 4, 1977, he committed suicide by a self-inflicted gunshot wound.
Appellant, surviving son and administrator of his father's estate filed this action in trespass under the Wrongful Death and Survival Acts seeking damages for the emotional trauma
and subsequent suicide of his father.*fn1 The complaint avers that appellee's negligence in driving over the boy's bicycle and causing his death was the precipitating cause of the father's depression and resultant suicide.
Appellee demurred to the complaint contending that no recovery could be granted because the father did not sustain physical impact, was not within the "zone of danger," and neither witnessed nor was in close proximity to the accident in which his son sustained fatal injuries. The trial court sustained the demurrer relying on our decision in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), which prohibits recovery for negligently inflicted emotional distress where the individual is not within the "zone of danger."*fn2 The Superior Court affirmed on the basis of the trial court's opinion and this appeal followed.
As properly noted by the parties on appeal, a plurality of the Court recently modified the "zone of danger" rule and allowed recovery for emotional distress where the complaining party, although outside the area of danger, actually witnessed the negligent act which killed a close family member. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).*fn3
In Sinn, Mr. Justice Nix examined the traditional tort concept of foreseeability and extended recovery beyond the traditional "zone of danger" without creating a standard which would subject tortfeasors to unlimited liability. In formulating this standard of foreseeability the opinion placed great weight on three factors set out by the California
Supreme Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968) as determinative of whether third party emotional distress injuries were foreseeable. The factors are as follows:
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely ...